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TERM IN TRUST POR
same right, title, and equity of redemption as the freehold ATTENDANT and inheritance of the same hereditaments and premises now are, or hereafter shall or may be subject or liable to, MORTGAGEES. under or by virtue of the proviso hereinbefore contained for redemption of the same premises. [Covenant by A. B. with Covenant. G. H., his executors, administrators, and assigns, against incumbrances, supra, p. 458). In WITNESS &c. (a).
APPOINTMENT of a Receiver (a). HIS INDENTURE, made &c. BETWEEN A.B., of &c., Parties. [mortgagor), of the first part; C. D., of &c., [mortgagee),
(a) The method of preparing assignments of terms is pointed out in the notes to the foregoing Precedents LI., and LII. Assignments of terms in trust for mortgagees are prepared in precisely the same way as those in trust for purchasers, with the exception of the declaration of the trusts. It has not, therefore, been deemed necessary to give at length any precedents of assignments of terms in trust for mortgagees; they will be easily prepared from the precedents referred to.
(a) After default has been made in payment of the principal money or Mortgagee interest, or immediately after the execution of the mortgage, if there be cannot charge
for trouble in no proviso for quiet enjoyment by the mortgagor until default, the
collecting mortgagee may enter into possession of the land, or, by giving notice to rents. the tenants, into the receipt of the rents and profits. (See supra, p. 492, n.) The mortgagee may charge the actual expenses incurred by him, but he cannot stipulate for an allowance or commission to himself for the trouble of collecting the rents; (French v. Baron, 2 Atk. 120 ; Scott v. Brest, 2 Term. Rep. 238; Chambers v. Goldwin, 9 Ves. 271); nor can he on any pretext charge for his trouble in collecting the rents. (Godfrey v.Watson, 3 Atk. 518; Langstaff v. Fenwick, 10 Ves. 405 ; Carew v. Johnston, 2 Scho. & Lef. 301; Lord Trimleston v. Hamill, 1 Ball & Beaty, 377). The only exception to the above rule is in the case of a mortgagee (not in possession) of a West India estate. (Bunbury v.Winter, 1 Jac. & Walk. 255; Leith v. Irvine, 1 My. & Ke. 277; and the
—but may apcases there cited. But although the mortgagee is precluded from charging point a receiver for his own trouble in collecting, he is not obliged in all cases to take with allowance. VOL. III.
Appointment of the second part; and E. F., of &c., [receiver), of the
- third part: WHEREAS, by an indenture of release bearing Recital of mort.
that trouble; he may of his own authority appoint a receiver whenever the distance or the nature of the property is such as would require much time or trouble for the collection of the rents, and may allow and charge a reasonable remuneration for the services of such receiver. (Bonithon v. Hockmore, 1 Vern. 316; Davis v. Dendy, 3 Madd. 170; and see the cases above cited). The remuneration allowed is generally £5 per cent. on the amount of rents collected; it may of course be less, but unless in very extraordinary cases it should not exceed that rate. (Davis v. Dendy, ubi supra).
The preceding remarks apply to the case of a legal mortgagee who has his remedy in his own hands, and neither requires nor can have the
assistance of a court of equity in appointing a receiver. (Berney v. Mortgagee not Sewell, 1 Jac. & Walk. 647). But a mortgagee of an equity of redemphaving the le- tion, or an equitable mortgagee, cannot of his own authority enter into gal estate may have a receiver possession or appoint a receiver, and therefore, unless a prior mortgagee appointed by a be in possession, he may have a receiver appointed by a court of equity; court of equity. but such application must be without prejudice to the prior mortgagee
(if any) taking possession. (Berney v. Sewell, 1 Jac. & Walk. 647; and the cases cited in the note thereto, pp. 649, 650 ; Aberdeen v. Chisty, 3 You. & Col. 379). And it is said, that if a receiver appointed by the court misapply the rents and profits, the loss must fall on the mortgagor. (Rigge v. Bowater, 3 Bro. C. C. 365). Receivers appointed by the court are of course subject to the regulations and orders of the court, and their
duties and liabilities are defined in the works relating to equity. Mortgagee may But, as has been previously observed, the mortgagee may stipulate for stipulate for the the appointment of a receiver, to be made either by the mortgage or by a appointment of a receiver.
separate deed. The advantage of making the appointment by a separate deed is, that such deed can be conveniently placed in the hands of the receiver, and be exhibited as an authority to the tenants for the payment of their rents to him. But if, as is usually the case, the receiver appointed is the mortgagee's solicitor, in whose hands the mortgage-deed will remain, there is little objection to appointing the receiver by the mortgage deed, and thus saving the expense of a separate deed. (See the precedent of such an appointment, infra, Precedent LXXIV.) A receiver is usually appointed by a deed in the shape of a power of attorney, as in the case in the text. Some practitioners make the mortgagor and mortgagee demise the lands to the receiver for a term of years, so as to give him the legal estate. This will enable him to distrain in his own name upon the tenants, and will prevent the determination of his authority by the death of the persons appointing him. But if the appointment be made by power of attorney, the distress may be made in the name of the owner of the legal estate; (Pitt v. Snowden, 3 Atk. 750;
even date with these presents, grounded on a lease for a APPOINTMENT year, and made or expressed to be made between (parties], ~ in consideration of the sum of £- paid to the said A. B. by the said C. D., the said A. B. did grant and release unto the said C. D. and his heirs all that messuage or tenement, farm, lands, and hereditaments therein particularly described, (a rental or particular of which said messuage, farm, lands, and hereditaments is contained in the schedule hereunder written or hereunto annexed), with the appurte
Hughes v. Hughes, 3 Bro. C. C. 87); and it is easy to remedy any mischance which may happen from the death of the parties appointing, by making a new appointment in the manner provided by the deed. The inconvenience of vesting the legal estate in a mere receiver is so great, that the practice should never be followed.
If the estate mortgaged be of such a nature, that the collection of the Convenience of rents will be troublesome or expensive, the appointment of a receiver appointing a
receiver at the should always be made a part of the arrangement. For although, as time of the above stated, the mortgagee can of his own authority in certain cases mortgage. appoint a receiver, yet it will always leave open the questions, whether the case justified the appointment, and whether the salary allowed was reasonable. The mortgagee, too, is of course liable for any act or defalcation of a receiver appointed by himself, while the mortgagor is always made responsible for a receiver appointed at the date of the mortgage. And if the receiver be appointed by a deed to which both mortgagor and mortgagee are parties, his powers, duties, and liabilities can be clearly laid down. There does not appear to be any hardship or inconvenience to the mortgagor in having a receiver appointed, because the deed may always contain a stipulation that the receiver shall not act unless the interest be in arrear.
The powers, duties, and liabilities of a receiver should always be Powers, duties, accurately defined by the deed appointing him, for he takes them entirely a
of a receiver from the deed, and the books supply very few instances of decisions on appointed by the nature of his situation. In a recent case, the receiver was appointed deed. by both mortgagor and mortgagee, and was authorized to bring actions in case of nonpayment of the rents, to give notices to quit, and, in cases of noncompliance, to bring ejectment, to grant leases, and to do all other matters concerning the said premises, as fully and effectually to all intents and purposes as the mortgagor could have done; and it was held, that the receiver had authority to demand possession from tenants under the statute 4 Geo. 2, c. 28, s. 1, so as to make them liable in double value for holding over. (Poole v. Wurren, 3 Nev. & Per. 693).
It is apprehended, that, under the power in the text, the receiver would not have such authority, and that it is not intended he should have power to eject tenants of his own authority.
Τ Τ 2
APPOINTMENT nances, to hold the same unto and to the use of the said
C. D., his heirs and assigns, subject to the proviso in the
per annum, by equal half-yearly payments, on the — -of agreement day of — and the day of — in every year: AND for the appointment of the WHEREAS, upon the treaty for the said mortgage, it was receiver.
agreed, that, for securing the punctual and regular payment of the interest of the said sum of £- , the said E. F. should be appointed receiver, with the powers and in manner hereinafter mentioned, of the rents and profits of the said messuage, farm, lands, and hereditaments mentioned in the said schedule hereunder written or hereunto annexed, and that these presents should contain such cove.
nants, clauses, and provisions as are hereinafter contained : Witnesseth. NOW THIS INDENTURE WITNESSETH, that, in Appointment
pursuance of the said agreement, and in consideration of of the receiver.
the premises, he the said A. B. (with the privity of the said C. D., testified by his being a party to and executing these presents) (6) hath nominated, constituted, and ap
As to mortga (6) The mortgagee is sometimes made to join in the appointment, as gee not joining having taken the legal estate by the mortgage, and perhaps it would be in the appointment of the re. more proper that he should do so. But usually the mortgagor alone ceiver.
appoints with the privity of the mortgagee, as in the precedent in the
pointed, and by these presents doth nominate, constitute, APPOINTMENT and appoint the said E. F. sole receiver, agent, and attorney, from time to time, in the name of the said A. B., to ask, demand, collect, and receive all and every the rents and profits of the said messuage, farm, lands, and hereditaments mentioned in the said schedule to these presents, from the present and future tenants and occupiers thereof, and the person and persons liable to pay the same respectively, as and when the same shall from time to time become due and payable, and in case of the non-payment thereof to take and use such lawful remedies for recovering and obtaining payment of the said rents and profits, or any part thereof, by action, suit, distress, or otherwise, as shall be thought necessary, and further to do, perform, and execute all other matters and things needful and requisite for collecting and receiving the said rents and profits, as fully and effectually to all intents and purposes as the said A. B. could or might do (c): And the said A. B. doth hereby Directions that order and direct all and every the tenants and occupiers of me
paid to re. all the said premises respectively, to pay unto the said E. F. ceiver. all and singular the rents and profits of the said premises, for the purposes hereinafter mentioned ; AND doth hereby -whose re
ceipts are to be declare that the receipts of the said E. F. shall be good and disch sufficient discharges to such tenants or occupiers and persons for such rents and profits as they shall respectively
ents shall be
text. Certainly, at the date of the mortgage, the mortgagor retains the immediate legal estate for a term under the proviso for quiet enjoyment until default; (supra, p. 474, n. (n)); but that does not seem to be a sufficient reason for the mortgagee not joining in the appointment. Perhaps, the origin of the practice may have been, that the receiver being appointed for the mortgagee's benefit, and being usually his solicitor or agent, when the appointment has been made by the mortgagor, the mortgagee can at any time confer such powers as must proceed from himself.
(c) It is not usual to extend the powers of a receiver by deed beyond Powers of rethose required for collecting the rents and profits. If it be intended ceiver confined
to collecting that he should have powers to eject tenants, grant leases, or the like, such rents : powers should be specially given. (See Poole v.Warren, 3 Nev. & Per. 693, fits. and supra, note (a).) But it is apprehended, that if a lessee accept a lease from a receiver, whether he has or has not authority to grant it, the lessee cannot dispute its validity. (Dancer v. Hastings, 4 Bing. 2).